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David L. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division, Department B

June 25, 2013

DAVID L., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, M.M., Appellees.

(Not for Publication -103(G) Ariz. R.P. Juv. Ct.; Rule 28 ARCAP)

Appeal from the Superior Court in Maricopa County Cause No. JD509431 The Honorable Brian K. Ishikawa, Judge

Christina Phillis, Maricopa County Public Advocate Mesa by Suzanne Sanchez, Deputy Public Advocate Attorneys for Appellant David L.

Thomas C. Horne, Attorney General Tucson by Laura J. Huff, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge.

¶1 David L. appeals from the superior court's order terminating his parental rights to M.M.[1] Finding no error, the order is affirmed.

FACTS AND PROCEDURAL HISTORY[2]

¶2 David is the biological father of M.M., who was born in 2008.[3] Nine months before M.M.'s birth, David was arrested and then convicted of felony charges; David was sentenced to 12 years in prison. David has been incarcerated all of M.M.'s life.

¶3 In July 2011, when M.M.'s mother was arrested, the Arizona Department of Economic Security (ADES) took physical custody of M.M. and filed a dependency petition. After M.M. was found dependent, ADES filed a motion to terminate David's parental rights in May 2012 alleging length of felony sentence under Arizona Revised Statutes (A.R.S.) section 8-533(B)(4) .[4] During a contested severance hearing, ADES presented testimony that David had been incarcerated since before M.M.'s birth, was serving a 12 year prison sentence and would be released when M.M. was approximately 13 years old. ADES provided evidence that David had seen M.M. once and had not requested visitation at any point; M.M. had no "real understanding" of who David is; David had sent M.M. drawings and letters; Mother was unable to care for M.M. and M.M. was in a relative placement with siblings and the placement was willing to adopt the children.

¶4 After considering the evidence presented, the superior court granted ADES' motion and terminated David's parental rights. The court found ADES had proven the length of felony sentence ground alleged because David's sentence would expire in 2021; the "total length of [David's] incarceration will preclude him from providing [M.M.] with support, supervision and nurturing;" David failed to develop a parent-child relationship with M.M.; David "had not made diligent efforts to establish a parent-child relationship with [M.M.] since his incarceration;" no other parent was "able to provide [M.M.] a normal home life" and severance was in M.M.'s best interests by providing M.M. "with permanence and stability" and "would further the plan of adoption."

¶5 From that order, David timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 8-235.

DISCUSSION

I. Standard of Review.

¶6 The superior court may terminate the parent-child relationship only upon a finding that clear and convincing evidence supports at least one statutory ground for severance and that a preponderance of the evidence shows severance to be in the child's best interests. A.R.S. § 8-533 (B); Kent K. v. Bobby M., 210 Ariz. 279, 284, ¶ 22, 110 P.3d 1013, 1018 (2005). This court reviews a severance ruling for an abuse of discretion, accepting factual findings ...


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